Planning appeal–Refusal to permit residential use of farmland–Proposed development alleged to threaten extension of green belt and to risk prejudicing structure and local plans–Court of Appeal, agreeing with Willis J, upholds dismissal of developers’ appeal
This was an
appeal by Link Homes Ltd and Ernest Baker from the decision of Willis J on
February 26 1976, upholding the Secretary of State’s dismissal of appeals from
the refusal of Basildon District Council to permit the residential development
of portions of agricultural land adjacent to the eastern end of the developed
area of Wickford, Essex.
G Dobry QC and
C J Lockhart-Mummery (instructed by Norton, Rose, Botterell & Roche)
appeared for the appellants, and Michael Mann QC and H K Woolf (instructed by
the Treasury Solicitor) represented the respondents.
Giving
judgment, CAIRNS LJ said: This is an appeal from a judgment of Willis J refusing
to quash a decision of the Secretary of State for the Environment, who had
dismissed four appeals from the refusal of the Basildon District Council to
grant planning permission for residential development of four areas of land at
Shot Farm, Wickford, in the County of Essex. The areas were referred to as (a),
(b), (c) and (d). (a) and (d) were of 62 and 77 acres respectively, and (b) and
(c) only 7.5 and 2.75 acres respectively. Areas (a) and (b) overlapped, and
area (a) included (b), which in its turn included (c). It was all agricultural
land adjoining the east side of the developed area of Wickford, and between
that township and Rayleigh.
Planning
permission was refused by the council on four grounds, of which only two were
sustained before the inspector. These were:
(i) The site lies within an area of no notation
as shown on the approved county development plan and is to be included within
the extensions to the metropolitan green belt, as shown in the review map of
the county development plan proposals now with the Secretary of State for
consideration. Within these areas new development is not permitted unless
required for agricultural purposes or for purposes appropriate to a green belt;
(ii) the proposal represents a substantial extension of the Wickford
development area into open countryside separating the townships of Wickford and
Rayleigh which ought to be protected from further development in order to
prevent the eventual coalescence of the townships.
Planning
permission for areas (b) and (c) was refused on the same ground numbered (i).
On area (d) the council had failed to give a decision in time and the appeal
was against such failure. However, out of time, they gave five grounds, of
which only one was alive at the date of the inquiry. That was a ground similar
to ground (i) to which I have already referred, but with slightly different
wording:
The site lies
outside any area allocated for residential development in the first review of
the county development plan and is within the proposed extension to the
metropolitan green belt where a new development is permitted only in the most
exceptional circumstances and when required for agricultural or allied
purposes.
In substance,
therefore, the inspector had only to consider the green belt grounds of
refusal. His report set out as usual very fully the cases of the parties, his
findings of fact and his conclusions. The conclusions are set out in four
paragraphs which I will read:
44. Bearing
these facts in mind I am of the opinion that, as the council have withdrawn
their objections to the appellants’ proposals on both sewage disposal and
highway grounds, the principal issue in the determination of the appeals is
whether the development of the appeal sites with dwellings would be acceptable
in principle having regard to their location outside the development area of
Wickford and within the proposed extension to the metropolitan green belt. I
have considered whether the appeal sites have been appropriately included in
this proposed extension to the green belt, but I find no reason to question
their inclusion for the time being, pending decisions on the green belt
proposals as a whole and on other planning considerations affecting this part
of Essex.
45. It seems
to me that this determining issue must be considered in the light of current
government policy relating to the determination of residential applications, as
expressed in annex A to circular 122/73 and subsequent guidelines. Annex A
requires that proposals to develop ‘white land’ within a growth area defined by
strategic plans must be considered against the background of a strong general
presumption in favour of housing in those parts of the growth area which would
clearly fall to be considered for inclusion in any specific growth area plan.
This presumption should only be overriden if there are exceptionally compelling
planning objections which outweigh the need to make the land available for
housing, such as the location of the site within a green belt where it would be
unlikely to form part of the growth area when this is further defined. As the
sites are within a proposed extension to the metropolitan green belt, and as
there do not appear to be any specific plans for the major growth area in which
they lie which might require the exclusion from the proposed green belt of the
land including the sites, it seems reasonable to assume that the general
presumption in favour of housing on land within a growth area does not apply to
the appeal sites.
46. If the
sites were not within a proposed extension to the green belt, then their
development might be considered to be a natural extension of the existing
development on the east side of Wickford. Furthermore, as the sites are
physically suitable for housing and are immediately available for development, their
development could make a material contribution to the demand for houses at
Wickford, where the amount of suitable housing land now available is sufficient
only to provide about four years’ supply.
47. Although
the appellants’ proposals would only marginally reduce the width of the
narrowest part of the gap between Wickford and Rayleigh, the development of the
appeal sites and especially
area of Wickford into the open land to the east, to the detriment of the
principal function of the proposed extension to the metropolitan green belt of
preventing the expansion of the towns beyond their urban boundaries and their
eventual coalescence. Consequently, I am of the opinion that because of their
detrimental effects in relation to the function of the proposed green belt
extension the appellants’ proposals would not be acceptable in principle.
Moreover, having regard to the apparent conflict arising from the inclusion of
the sites within both a proposed extension to the green belt and a major growth
area, the grant of planning permission for the proposals could prejudice the
wider future planning of the Wickford area when the proposed structure and
local plans are prepared, and so would be premature at the present time.
The Secretary
of State in his letter of decision set out those four paragraphs, and
concluded, in paragraph 3 of the letter, as follows:
No reason is
seen to dissent from the inspector’s conclusions on the merits of the appeal
proposals. In view of the green belt considerations to which he refers and of
the importance which is attached to avoiding any risk of prejudicing the wider
future planning of the Wickford area in the context of the preparation of
structure and local plans, it is considered that to decide the future of the
appeal land at the present time would be premature. The Secretary of State
therefore accepts the inspector’s recommendation, dismisses all four appeals,
and hereby refuses to grant planning permission for the residential development
of 77 acres at Shot Farm.
The applicants
applied to the court under section 245(1) of the Town and Country Planning Act
1971 to quash the decision, and the application was heard by Willis J, when
three points were taken: first, that the inspector and the Secretary of State
failed to deal separately with areas (b) and (c); secondly, that paragraphs 46
and 47 of the report were mutually contradictory; and thirdly, that there were
no firm facts on which the decision as to prematurity was founded. The learned
judge decided against the applicants on all three points. Only the first of
them has been pursued in this court. The case for the applicants so far as
recorded in the inspector’s report did not differentiate between areas (b) and
(c), on the one hand, and areas (a) and (d), on the other, except in two
sentences in paragraphs 19 and 20 of the report. In the middle of paragraph 19
there are the words: ‘The development of the two smaller appeal sites would not
extend the urban area beyond the present eastern limit of Wickford formed by
Fanton Walk.’ And in paragraph 20: ‘The
development of the two smaller sites would be a form of rounding-off and
infilling of the existing Alicia Avenue estate.’ There is no reason to suppose that either of
those statements was in issue. The first was a statement of the obvious if one
looked at a plan–and a number of plans were annexed to the report. The second
statement really adds nothing to the first. It remained the fact that the sites
(b) and (c) were on land proposed for extension of the green belt, and Mr Dobry
concedes that there is no distinction to be drawn between such land and land
which is already part of the green belt. That being so, and the same
considerations applying to all four areas, there was no need for areas (b) and
(c) to be dealt with separately in the inspector’s conclusions or in the
Secretary of State’s decision.
Mr Dobry
complains that in his judgment the learned judge directed his attention to the
question of whether there were special circumstances affecting the sites, and,
in particular, affecting areas (b) and (c). That conflict arises in this way.
There is a circular no 42/55, which is set out on page 4192 of the Encyclopedia
of Planning, paragraph 5 of which says: ‘Inside a green belt, approval
should not be given, except in very special circumstances, for the construction
of new buildings . . . for purposes other than agriculture, sport, cemeteries,
institutions standing in extensive grounds, or other uses appropriate to a
rural area.’ There is another circular,
122/73, paragraph 2 of which says: ‘Annex A to this circular sets out the new
guidelines and should be regarded as supplementing and amplifying the advice
given in circular 102/72. The Secretary of State expects authorities to apply
the new guidelines in determining planning applications and he will follow them
himself in deciding applications which come before him on appeal or at his
direction.’ In annex A, paragraph 4
provides: ‘In growth areas planning applications must be considered against the
background of a strong general presumption in favour of housing. But as a
growth area is a general location only, this strong general presumption applies
only to those parts of the area that clearly would fall to be considered for
inclusion in any specific growth area plan. . . . For those parts the
presumption should only be overridden if there are exceptionally compelling
planning objections to a development which, in the circumstances of the case,
outweigh the need to make the land available for housing. Such objections
would, for example, include the fact that the development would seriously
prejudice the design of a satisfactory plan for the area as a whole; that the
development was proposed on land situated in green belt’–then the words that
follow are not relevant. Paragraph 5 provides: ‘Outside growth areas, white
land can be regarded as suitable for housing, providing its development
represents a natural extension of existing development and is compatible with
its size, character, location and setting, and provided there are no further
compelling planning objections (which would of course include those mentioned
in paragraph 4 above) . . .’, one of which is land situated in green belt. Then
the last sentence of that paragraph reads: ‘The question of need is relevant
only to the extent that other objections arise and it has to be decided whether
the evidence of need outweighs them.’
Paragraph 9
says:
Where it is
reasonable for the development to take the form of an expansion of the town,
extension of development into the countryside will be justified. But such an
extension is objectionable on planning grounds if it entails creating ribbons
or isolated pockets of development or reversing accepted policies to separate
villages or towns, or if it conflicts with national policies for the protection
of the environment such as those for safeguarding green belts. . . . Such
objection would normally rule out development unless the circumstances of the
case are such that there is an exceptional need to make land available for
housing.
The 1973
circular and the annex were undoubtedly relevant and were taken into account in
the report and the decision. The learned judge said that both parties and the
inspector recognised that both circulars were relevant. But, in fact, says Mr
Dobry, he never recognised them as relevant, and though it was mentioned as
part of the respondents’ case and was referred to as such in the inspector’s
report, it was not made the basis of the conclusions of the report nor of the
decision of the Secretary of State. Since the relevant principle was that a
green belt objection would normally rule out development unless there was
exceptional need to make land available for housing, this seems to me to be in
effect the same as saying that there must be either an exceptional need for
housing or some other special circumstances to make it proper to permit
building development on green belt land.
Then it is
said that the first sentence of paragraph 47 of the report quoted in the
decision letter is open to strong criticism. I will read that sentence again.
‘Although the appellants’ proposals would only marginally reduce the width of
the narrowest part of the gap between Wickford and Rayleigh, the development of
the appeal sites and especially the two larger ones would nevertheless result
in a major extension of the urban area of Wickford into the open land to the
east, to the detriment of the principal function of the proposed extension to
the metropolitan green belt of preventing the expansion of the towns beyond
their urban boundaries and
contended, leaves the applicants in doubt whether the development of sites (b)
and (c) would in view of the inspector and the Secretary of State constitute a
major extension of the urban area. I do not consider that any sensible person
reading the sentence could be in any doubt of its meaning, namely, that the
development of any of the sites would constitute a major extension.
The Town and
Country Planning (Inquiries Procedure) Rules 1974, which are to be found at
page 3880 of the Encyclopedia of Planning, provide in rule 13(1): ‘The
Secretary of State shall notify his decision, and his reasons therefor, in
writing to the applicant, the local planning authority and the section 29
parties and to any person who, having appeared at the inquiry, has asked to be
notified of the decision.’
Mr Dobry
referred to a number of authorities for the propositions that the reasons must
be clear, must leave no substantial doubt in the mind of the applicant, must be
in sufficient detail to enable him to know the conclusions on the principal
issues, and must be reasonable conclusions on the evidence adduced. I do not
find it necessary to refer to the authorities, because I fully accept all those
propositions. In my judgment, the reasons that were given passed all those
tests, and for the reasons that I have given, and for the reasons contained in
the judgment of Willis J, with which I wholly agree, I would dismiss this
appeal.
STEPHENSON and
WALLER LJJ agreed and the appeal was dismissed with costs.